KARAN SINGH Vs. JAMNA PRASAD

JUDGEMENT

(1.) THIS was a suit brought under Section 58/ 63 of Act No. II of 1901 for ejectment. One of the pleas raised in the court of first instance was that the relation of landlord and tenant did not subsist between the plaintiff and the defendant. There was also a plea that this suit for ejectment of the tenant was not cognizable by the Revenue Court. The court of first instance, the Assistant Collector, went into the question of the relation of landlord and tenant between the parties, fully examined the whole of the evidence given in the case, and came to the conclusion that there was a relation of landlord and tenant between the parties. On the plea of jurisdiction the court found that as it had already come to the conclusion that there was a relation of landlord and tenant between the parties, the question of jurisdiction was also involved in that issue and that the suit was cognizable by the Revenue Court. That court decreed the suit. From the decree and judgment of the Assistant Collector an appeal was filed by Jamna Prasad, and one of the grounds taken in the memorandum of appeal before that court was that the lower court had erred in law and fact in determining issues Nos. 3, 4 and 5. It did not record a finding on the point whether the suit was cognizable by the Revenue Court or not. When the appeal came up for decision before the learned District Judge, he was of opinion that there was no decision on proprietary right and that there was no decision on the question of jurisdiction as the appellant before him himself had complained, in the memorandum of appeal, that the court of first instance had not decided the question of jurisdiction. He therefore held that no appeal lay to him and ordered that the petition of appeal should be returned to the appellant. From the order of the District Judge the present application for revision has been filed. Dr. Sen who appears for the opposite party has raised a preliminary objection to the hearing of this application and has argued that in matters coming under the Tenancy Act the power of revision has not been given to this High Court. He has relied upon the decision reported in the case of Damber Singh v. Srikriskn Das (1909) I.L.R. 31 All., 445, and also upon the judgment of Mr. Justice Piggott in the case of Parbhu Narain Singh, Kashi Naresh v. Sarbans Lal (1916) 14 A.L.J. 281. Mr. Lakshmi Narain argues in reply that this case is clearly distinguishable from the case of Damber Singh v. Srikrishn Das (1909) I.L.R. 31 All., 445, because in that case a decision upon a revenue matter was challenged by way of revision in this Court and therefore having regard to the provisions of Section 167 of the Tenancy Act, no revision could lie in that case, whereas in this case, the sole question raised being that the learned District Judge was wrong in refusing to entertain the appeal, a revision would lie, because in such a case the matter in dispute would not be brought forward and questioned on the merits. He also relies upon the judgment of Mr. Justice Walsh in the case of Parbhu Narain Singh, Kashi Naresh v. Harbans Lal (1916) 14 A.L.J. 281. I have heard the arguments on both sides, but I do not see ground to distinguish this case from the case of Damber Singh v. Srikrishn Das (1909) I.L.R. 31 All., 445. Having regard to the construction which the learned Judges put upon the provisions of Section 167 of the Tenancy Act, I do not think there is any room for argument that power of revision to the High Court was given under the Tenancy Act. In this view I am bound to hold that the present application for revision does not lie. I, therefore, dismiss it with costs.